#### Reuben Jones, *in Review, versus*Eliab Eaton.

Where a review is granted, in cases in which the petitioner is not entitled to it as a matter of right, it may be done on such terms and conditions as the Court may deem reasonable.

If a review is granted, unless the defendant in review performs certain acts, performance of the conditions may be pleaded *in bar*of the action of review.

Whether a defective *jurat*to a plea in abatement may be amended, *quaere.*

On Exceptions and Report.

Writ oe Review. The defendant pleaded in abatement, that the review was granted only in case defendant should fail to comply with certain terms, and alleged that he had complied with the terms.

The language of the *jurat*to this plea was, —" Subscribed *387and sworn to, before me,” &c. The plaintiff filed a motion to dismiss the plea for want of a sufficient *jurat;*which motion the Court denied, and allowed the magistrate to amend the *jurat*according to the facts, on defendant’s motion. The plaintiff then moved to dismiss the plea for other reasons stated in the opinion, but the motion was denied.

To these several rulings the plaintiff excepted.

The plaintiff then filed a replication to the plea, on which an issue of fact was joined, the testimony taken, and the case reported to the Law Court.

Whitcomb, in support of exceptions.

*J. 8. Abbott,*contra.

The opinion of the Court was drawn up by

Appleton, C. J.

When the petition for this writ was heard, a review was granted, *unless*the defendant should within a definite time comply with certain terms deemed by the presiding Judge as just and reasonable. It is claimed that they have been complied with. Notwithstanding this, it is insisted that the writ properly issued. The ground taken, is, that the granting or denying a writ of review according as certain conditions are or are not complied with, is erroneous. In other words, it is urged that a review must be granted or refused absolutely, and that the Court have no discretion as to the imposition of terms.

By R. S., 1858, c. 82, § 4, "when judgment is rendered on default of an absent defendant,” he is entitled, in cases within that section, to a review as " of right.” That the review under that section "is a matter of right” is fully recognized by R. S., 1858, c. 89, §5. But the case before us is not within the purview of either of the sections, to which reference has been made.

When a review is not " of right,” its allowance or refusal rests wholly upon judicial discretion. "When a case is presented on a motion or petition for a new trial, or for a review,” remarks Shepley, J., in *Tuttle*v. *Gates,*24 Maine, *388397, "for any cause not arising out of an illegal or erroneous act of the Court, a new.trial may be granted or refused by the Court in the exercise of its legal discretion. It cannot be claimed as a matter of right. And, in such cases, it may be done upon such terms and conditions imposed, as the Court may consider reasonable.” Such appears to have been the practice of this Court. *Howard*v. *Grover,*28 Maine, 97; *Hobbs*v. *Bevens,*33 Maine, 233; *Jewell*v. *Gage,*42 Maine, 247; *Withers*v. *Larrabee,*48 Maine, 570.

The plaintiff having sued out this writ, the defendant pleaded certain facts in abatement. But this plea may be regarded as defective for want of a sufficient *jurat. Fogg*v. *Fogg,*31 Maine, 302.

But, if the whole record be examined, it will be seen that a review was not granted absolutely, bu,t only on the happening of a certain contingency. The plaintiff has only a-modified and conditional right to a review. The defendant negatives this by proof of performance of what, if done and performed by him, would prevent the issuing of the writ. The facts were set forth in the plea in abatement, but we think they constitute a bar to all further proceedings. According to the analogies of pleading, they should have been pleaded by way of answer to the plaintiff’s writ, rather than in abatement thereof.

It is objected that the release filed contains no discharge of dower. This not having been required, the defendant was not bound to procure it. *Plaintiff nonsuit.*

Rice, Davis,'Kent, Walton and Dickerson, JJ., concurred,